Issues Legal in Software
CS 415, Software Engineering II Mark Ardis, Rose-Hulman Institute April 11, 2003
DISCLAIMERS
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I am not a lawyer. Nothing in this lecture should be considered legal advice. The contents of this lecture are for educational purposes only.
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"The first thing we do, let's kill all the lawyers." -- Shakespeare, King Henry VI, Pt. IV, ii, 86 "The more I see of lawyers, the more I despise them." -- Mark Twain, letter to James R. Osgood, Jan.25,
1876
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Outline
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Lawsuits Intellectual property
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Lawsuits
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Negligence Malpractice
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Negligence
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You have a duty to exercise reasonable care in providing services. You are negligent if no reasonable person in your situation would have acted as you did. Penalties may be limited by contract.
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Malpractice
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You have a duty to use the standard and accepted practices of your profession. You are guilty of malpractice if no reasonable person of your profession would have acted as you did. Penalties are not limited by contract, may include treble damages.
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Requirements for a Profession
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extensive learning and training code of ethics disciplinary system for members emphasis on social responsibility license
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Negligence vs. Malpractice
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Negligence
use reasonable care
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Malpractice
use standard and accepted practices of your profession guilty if no reasonable person of your profession would have acted as you did penalties are not limited by contract, may include treble damages
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guilty if no reasonable person would have acted as you did penalties may be limited by contract
Cartoon of the Day
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Intellectual Property
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Case Study Introduction Patents Copyright Trade Secrets Open source Case Study Discussion
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Case Study
(adapted from Intellectual Property Protection for Software Curriculum Module SEI-CM-14-2.1, by Pamela Samuelson and Kevin Deasey, July 1989)
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Background
Emily is an undergraduate student in software engineering at Module University. Emily has recently written a highly original and useful computer program for accounting functions used in small professional operations. Emily wrote the program to fulfill requirements of a course.
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Copyright Case Study
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Can Emily claim a copyright on the software? Can another student reuse part or all of Emily's program? Can another student reuse Emily's highlevel or detailed design?
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Patent Case Study
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Can Emily obtain a patent on the software? If she obtains a patent, can she also copyright the software? What if she wrote the software as part of a summer job for the Property
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Intellectual x x x x x
Case Study Introduction Patents Copyright Trade Secrets Open source Case Study Discussion
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Patents
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Used for processes, machines, manufactures Subject must be new, unobvious and useful Grants owner exclusive right to make, use and sell for 17 years Companies are entitled to patents on "work for hire" by employees
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Copyright
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Used for any writing or creation Subject must have been created by copyright owner Grants owner (and heirs) exclusive right to copy, distribute, make derivative works until 70 years after death of owner Companies are entitled to copyrights on 18 "work for hire" by employees
Copyright Limitations -- Fair Use
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the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes the nature of the copyrighted work the amount and substantiality of the portion used in relation to the copyrighted work as a whole the effect of the use upon the potential market for or value of the copyrighted work 19
Digital Millennium Copyright Act (DMCA)
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Passed by congress and signed into law in 1998. Prevents circumvention of Technological Protection Measures (TPMs) Extends copyright protection 20 years
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Trade Secrets
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Used for formulas, patterns, devices Subject must be used for competitive advantage in business, and must be maintained as secret Grants owner exclusive right to enforce protection against fraud for as long as subject is secret
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Open Source
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